Pollution Law Watch

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Vapor Intrusion Class Action Settlement

By Edward J. Manzke on Posted in Citizen Suit, Contamination, Court Ruling, Pollution

The Pollution Lawyers recently received final court approval of an $8.1 million settlement of one of its environmental contamination cases.

In late 2008, families in the small town of Attica, Indiana learned that toxic chemical vapors were entering the air inside their homes.  After getting the bad news, these families turned to The Pollution Lawyers for help.  Our class action lawsuit, filed against Kraft Foods Global, Inc. alleged that the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE) and vinyl chloride (VC) dumped at a manufacturing plant owned by Kraft seeped into the groundwater and traveled underneath over one-hundred nearby homes.  Once underneath these homes, the chemicals worked their way into the indoor air.  This process is commonly known as vapor intrusion.  Our lawsuit sought recovery for the damage caused to our clients’ property.

After two years of litigation, The Pollution Lawyers secured a settlement for our clients that was greater then the assessed value of all the properties in the class.  In addition to the monetary compensation, Kraft has contractually agreed to remediate the groundwater and indoor air contamination.  For more information on our settlement see the following media links:  press release, news video, and newspaper article.

Class Action Status Granted In Vapor Intrusion Case Against Madison-Kipp Corporation

By Michael Hayes on Posted in Citizen Suit, Contamination, Court Ruling, Pollution, RCRA, Vapor Intrusion

Earlier this year (see, post dated February 3, 2012), we reported on the filing of class action claims in a lawsuit brought by residents of Madison, Wisconsin against the Madison-Kipp Corporation (“MKC”).  The Pollution Lawyers originally filed this suit in October 2011 on behalf of seven families who live immediately adjacent to MKC’s manufacturing plant, asserting that their properties have been contaminated by the toxic chemical PCE.  MKC used this dangerous chemical for several decades, spilling and releasing it into the environment such that it is now present in vapor form beneath these families’ properties and, in some cases, inside their homes.  Testing performed after the suit was filed revealed that this vapor intrusion problem was widespread in the area, impacting at least 34 residential properties.  Based on these test results, the suit was amended on January 20, 2012 to assert class action claims on behalf of the 80 or so persons who own and/or reside in these homes.  A motion to certify this proposed class was also filed, which MKC subsequently opposed.

On April 16, 2012, District Court Judge Barbara B. Crabb issued an Opinion and Order granting Plaintiffs’ motion for class certification.  As a result of this ruling, this case is now formally a class action that will address the property rights of the many people who reside in the designated Class Area.  As lead plaintiff/class representative Kathleen McHugh stated about the ruling: “I am very happy that my family and my neighbors will be able to litigate these important issues together.  While we realize that this is but one step in a lengthy legal process, it is a critical one.  A case like this is too expensive for any family to litigate on its own.  With this ruling, the families are now, together, one step closer to having our day in court.”

Families file class action claims against Madison-Kipp Corporation

By Michael Hayes on Posted in Citizen Suit, Contamination, Pollution, RCRA, Vapor Intrusion

Previously on this Blog (see, posts dated May 9, 2011 and October 28, 2011), we reported on a serious vapor intrusion problem facing Madison, Wisconsin families who live near the Madison-Kipp Corporation (“MKC”) manufacturing plant.  Since our last report, additional environmental testing was conducted in the area that revealed toxic PCE vapors were present on and adjacent to numerous properties that had not previously been tested.  In December, 2011 the Wisconsin DNR issued a public notice advising area residents that the PCE vapor intrusion problem is “widespread” around the MKC plant and that further testing and other response measures are necessary.

Based on this alarming new information, the lawsuit filed last October on behalf of seven area families has been amended.  On January 20, 2012, The Pollution Lawyers filed an Amended Class Action Complaint asserting claims on behalf of the approximately 80 people who own or reside in homes immediately adjacent to the MKC plant.  The Amended Complaint includes RCRA citizens’ suit and other claims seeking to compel MKC to comprehensively abate the PCE contamination in the area, as well as claims to recover lost property values and other damages suffered by these homeowners and residents.  A request that the Court formally certify this case as a class action has already been submitted, and a ruling on that issue is expected in the next several months.

Stay tuned to this Blog for future developments.

 

NEW STUDY: PCE EXPOSURE LINKED TO MENTAL ILLNESS

By Norman B. Berger on Posted in Contamination, Groundwater, Pollution, Uncategorized, Vapor Intrusion

 

A study published in the journal Environmental Health on January 20, 2012 finds a scientific link between exposure to PCE in early childhood and the development of mental illness.   The study was conducted by some of the most prominent and respected toxicologists and public health researchers in the nation.  It studied a population on Cape Cod,Massachusetts.  The subjects were exposed to PCE  in their drinking water supplies between 1969 and 1983 during early childhood.  The PCE was released from vinyl water distribution pipes on Cape Cod.  The study found increased incidence of mental illness, including depression, bipolar disorder, post-traumatic stress disorder and schizophrenia in the subjects.  The findings of the study are extremely significant from a public health perspective.  PCE is among the most common — and dangerous — chemicals released worldwide due to its widespread use as an industrial cleaning solvent and as the most common drycleaning fluid.  PCE has been previously linked to many diseases, including diseases of the vital organs and cancer.  This ground breaking research shows once again what many of us in the field already know and expect — the threats to people from exposure to chemicals indiscriminately handled by polluters are more substantial than those responsible for protecting us are willing to admit.  A copy of the study can be found here.

THE POLLUTION LAWYERS HELP CNN SPOTLIGHT THE DANGERS OF CONTAMINATED SCHOOLS

By Shawn M. Collins on Posted in Contamination, Government, Pollution, Vapor Intrusion

In every case we have the same worry:  “what is this contamination doing to the children?”  Whether the contamination is TCE in drinking water coming out of the kitchen tap and shower head; PCE in “vapor” form in the air that the family breathes every moment in the home; or arsenic in the dirt in the family’s front yard where the children play, we worry most about what these chemicals are doing to the children. Because we know that these very dangerous chemicals are most dangerous of all to children.

Each of The Pollution Lawyers – - Norm Berger, Mike Hayes, Ed Manzke and me (Shawn Collins) – - is a lawyer second… and a father first.  We understand that every parent’s most consuming duty is to keep his/her child safe, and we feel personally the anxiety of every parent we have come to meet in our cases that gets hit with the horrible news that the home and neighborhood in which they have been raising their children is not the safe place they thought it was.

So we were especially disturbed to learn recently that New York schoolchildren had been attending The Bronx New School for a 6 month period last year during which school officials knew (but the kids’ parents did not) that there were high levels of cancer-causing TCE in the air that the kids were breathing at the school every day.  In fact, we wrote several blogs about it.  [see those blogs here]

Enter CNN, Dr. Sanjay Gupta and his producer, Jen Christensen.  They have been investigating contaminated schools as part of their Toxic America series, and asked if we would contribute to their TV story.  I was honored to be interviewed by Dr. Gupta’s team, and wanted you to know about the story CNN ran on “CNN Presents” this past weekend.  They were kind enough to include me in the story, and you can watch it here if you’d like (my contribution is at time 3:20 of this video).

We have sadly learned from years of fighting pollution and polluters that when children are in environmental harms’ way, it is irresponsible adults who have put them there.  We believe that the CNN story sheds important light on a serious problem threatening many American children, and truly hope that, through this story and the work of dedicated people, our children will be much better protected against dangerous chemicals in their homes, neighborhoods and schools.

STUDY LINKS VAPOR INTRUSION TO BIRTH DEFECTS

By Edward J. Manzke on Posted in Contamination, Government, Groundwater, Pollution, Vapor Intrusion

For decades, hundreds of homes in a section of Union, New York known as Endicott have been sitting above a plume of TCE and PCE contaminated groundwater.  TCE and PCE are man-made solvents historically used by corporations to strip grease and grime off metal parts.  Endicott is just south of a former IBM manufacturing facility that released thousands of gallons of these solvents into the environment.  One of these solvents, TCE, has recently been classified as a known human carcinogen by the USEPA.  Although the dangers of drinking TCE and PCE laced-water have been documented for years, less research has been devoted to the inhalation of TCE and PCE.  Endicott, with its long history of groundwater contamination, provided researchers with valuable insights into the dangers of inhaling TCE and PCE.

The Endicott Study, conducted by researchers at New York’s State Department of Health is one of the first studies to examine the health effects of breathing PCE and TCE contaminated air from vapor intrusion.  Vapor intrusion is the process whereby TCE and PCE in groundwater beneath homes vaporizes and moves up through the ground and into the air inside homes.

Department of Health Researchers looked at health statistics from 1,440 live births to mothers living above the Endicott groundwater plume between 1978 and 2002, and compared them to health related statistics for children born throughout New York.  Their findings were alarming.  The researchers found that children born in the Endicott Study area had higher rates of adverse health issues including heart defects and low birth weight.  In addition to these findings, a previous health statistics review of the Endicott area by the Department of Health also found a significant elevation in the number of kidney and testicular cancers.

This study is significant because it provides tangible support for the proposition that inhalation of TCE and PCE via vapor intrusion can be dangerous to human health.  Our hope is that the Endicott Study, which is slated for publication in Environmental Health Perspectives, will be used by state and federal environmental and public health regulators as support for tougher clean-up standards at contaminated industrial sites and to force the corporate polluters responsible for environmental contamination to respond quickly to protect homeowners and their families from the health threats posed by vapor intrusion.

STIFF-ARM CITY: Chancellor and Department of Education Break Promise to Families of Highly Contaminated Bronx New School

By Shawn M. Collins on Posted in Citizen Suit, Contamination, Government, Pollution, Vapor Intrusion

Before we get to the broken promise, let’s first re-cap DOE’s disregard for the health of the children who have attended The Bronx New School for the last 20 years [feel free to visit my previous blogs on this subject dated: 8/30, 8/26, and 8/22. ]

(1) In 1992, DOE signs a 20-year lease to convert an old industrial site – - with a history of heavy use of toxic chemicals – -  into an elementary school (which became The Bronx New School).

(2) Even though there are abundant, publicly-available records showing that the site may be contaminated, DOE does not take the couple of hours needed to find and read these records.

(3) Likewise, DOE does not test – - at a cost of only a few thousand dollars – -  the old industrial site, to find out if it was contaminated… before DOE sends young children, teachers and administrators there for 8 hours every day.

(4) Nearly twenty years go by.  Many hundreds of students attend, and then graduate from, The Bronx New School.  Still no testing.

(5) Until January 2011. That’s when the 20-year lease on The Bronx New School site is up, and DOE wants to re-lease.  DOE says that now it must do environmental testing.  Before a new lease can be signed.  Note that, for the past 20 years, concern for the health of the students never made DOE think that it should do environmental testing.  DOE says that there’s a law that mandates testing before re-leasing a building.  Evidently, there is no law that forbids making a school out of a contaminated old industrial site. . . or that mandates reading public records or testing to see if a site is safe before sending children there in the first place.

(6) Environmental tests taken in January of this year – - and then again in March, April and May – - reveal extremely high levels of  a chemical known as “TCE” in the air in the cafeteria, hallway and basement of the school.  Levels up to 10,000 times what NewYork City’s own Department of Health says is safe. TCE is one nasty chemical.  It’s a known cancer-causer.   But it’s colorless and odorless, so you don’t see or smell that it’s in the air.  Adults, and especially children, should not be breathing TCE.  The immune systems of children do not process toxins well, and so the toxins do more damage in children than in adults.

(7) But DOE does not tell the parents of the children attending the school, or the school staff, about the TCE they are breathing.  Instead, DOE had the kids and staff finish out the school year (another 6 months), continuing to breathe the air that DOE (but no one else) knew was laced with a highly-toxic chemical.

(8) In early August of this year – - well after the end of the school year – - a seemingly contrite Schools Chancellor Dennis Walcott tells horrified parents for the first time of the TCE contamination, and that it is so bad that their children will no longer be attending school there.

And then, on August 18, in response to public demands that former Bronx New School students be located and informed that their health might have been jeopardized while they attended the school, Wolcott promised two things.  First, he promised to make a master list of former students, so that they could be kept abreast of developments about the contamination at the school.  Second, he promised to hold additional informational meetings, presumably to share new information as it became available, and to answer questions from these suddenly very worried families.  And they have good reason to be worried, alarmed even.  The TCE levels detected at the school earlier this year – - if they are representative of past levels – - are high enough to cause serious illness to those breathing them for hours each day.  Also, because many years can pass between exposure to TCE and manifestation of the illness it can cause, students who attended the school years ago are right to believe that good health today does not mean they are “out of the woods” for contracting TCE-related disease.

Walcott’s promise of a list and informational meetings was made to a deserving and emotionally vulnerable audience. . . to quell their outrage and anguish.  The promise of the list was especially important.  The list would serve as a database of alumni of the New Bronx School, to allow for medical monitoring of those former students.  It would keep track of sickness patterns, and help these families force the state to take responsibility for medical treatment, if it can be shown that a former student’s illness was caused by exposure to TCE at the school.

Walcott’s promise was made almost 4 months ago.  But today?  No list.  And no meetings.

Current and former Bronx New School families have reminded Walcott of his promises. . . in phone calls and public statements they have made to try and reclaim his and DOE’s attention.  But Walcott will not meet with them (instead meeting only with a select group of parents comprising the Parents’ Association – - a meeting which reportedly did not include parents of the former students).  [See this December 21 Riverdale Press article: Parents say DOE ignored them after school toxin exposure]

What’s going on with Walcott and DOE?  Why are they hiding from these families?  More importantly, what are they hiding from these families?

Why make promises to such vulnerable people, and then break them?  There is no one in the entire New York school system more deserving of DOE’s time and attention than these families.

Since 1992, DOE failed in its most fundamental responsibility to protect the children of The New Bronx School.  Now, it’s failing to protect them. . . again.  How dare DOE stiff-arm these families as they try to understand what has happened to their children.

EPA ADMITS FRACKING POLLUTES GROUNDWATER

By Norman B. Berger on Posted in Uncategorized

            EPA has finally acknowledged that fracking can cause groundwater contamination.  In a draft report issued this month concerning an investigation into contamination of a drinking water aquifer in Wyoming, the EPA concluded “. . . .  the explanation best fitting the data for the deep monitoring wells is that constituents associated with hydraulic fracturing have been released into theWind Riverdrinking water aquifer. . . .” (Click on EPA_ReportOnPavillion_Dec-8-2011 for the entire report)  EPA has proven, once again, that if it walks like a duck and quacks like one . . . .  it’s a duck.

            In recent years the oil and gas fat cats have been making millions and millions of dollars by injecting fluids containing dangerous chemicals into the ground to cheaply recover previously unrecoverable oil and gas.  And, rather than admit the obvious — that this can create serious environmental problems through the uncontrolled release of harmful chemicals — they have followed their time-tested approach.  They deny the obvious.  They obfuscate the facts.  They support bogus legislation to protect themselves (like the Texaslaw allowing them to keep fracking chemicals secret).  And, they brand as “job killers” people who demand sound scientific analysis before launching into potentially catastrophic action (the gas industry recently commissioned a study finding that they created over 600,000 jobs so they can pre-empt those who would question their unfettered operation).  Didn’t we just go through this in the Gulf?

            The EPA study proves that before we allow industry to launch headlong into fracking operations everywhere they think they can make a buck, a thorough scientific analysis must be undertaken by people interested in protecting the humans and the environment likely to be affected.  It must be done on a project specific basis.  The recent events in the Gulf have taught us that industry can not be trusted where there is big money on the line.  Is our government any different?  We can do better as a nation.  We can create jobs responsibly, and without sacrificing our future.

STAND UP AND FIGHT… YOU CAN SHAME YOUR GOVERNMENT INTO DOING SOMETHING ABOUT CONTAMINATION IN YOUR NEIGHBORHOOD

By Shawn M. Collins on Posted in Citizen Suit, Contamination, Government, Groundwater, Pollution, RCRA, Uncategorized

This is a hopeful story.  But it must first wind its way through some seemingly discouraging territory.  Hang with me, though, and we’ll get to the hopeful part.  I promise.

Here’s the discouraging part: You cannot trust your government to tell you that your air or water is contaminated.  Or to protect you against the contamination.

That’s a terrible thing to say.  But it must be said, because it’s true.  Here’s just some of the evidence that we’ve seen:

Our First Case:  Early on, the state EPA was about to give a polluted industrial property an environmental “clean bill of health” (called a “No Further Remediation” letter).  This means that EPA was about to declare that the nasty chemicals (mostly TCE) dumped on the company’s property could not migrate off of it in groundwater.  We didn’t believe it.  So we spent our own money to test the groundwater in our clients’ neighborhood across the street.

We found TCE all over the place.  In fact, as more testing over the next few months would prove, TCE from the industrial property had traveled almost three miles off-site.

Our Most Recent Case:  In a case we just filed in Madison, Wisconsin, the state’s environmental agency (the Wisconsin Department of Natural Resources: “DNR”) earlier this year asked a local manufacturer to test in and around the homes of some of the families living behind the company to see if a chemical (mostly PCE) spilled years ago on company property had moved off site.  The testing turned up PCE almost everywhere they looked… in the dirt in the families’ yards; in the groundwater running under the neighborhood; in gas  underneath some of the homes; and even in the air that people breathe literally inside one of the homes.  [See our Complaint filed on 10-20-11]  So, in forcing this testing, government did its job, right?

Hardly.

DNR knew since at least 1994 that the company’s property was contaminated with PCE, and that there were families living only 50 feet away.  And yet DNR waited nearly 17 years to see if any of these families had been affected by the PCE.

Pilsen:  Families in Chicago’s largely Latino Pilsen community had been begging the Illinois EPA for years to test local neighborhoods to see if lead – - a known cause of neurological injury to children – -  from two local plants was contaminating the community’s air.  Finally, in 2011, EPA relented, and put a lead monitor on the roof of the local elementary school, where 500 children breathe the air for 6-7 hours each weekday.   Dangerously high levels of lead were found in the air at the school. [see my previous blog dated 8/10/11 for further details on the Pilsen situation]  Even though the foot-dragging Illinois EPA didn’t deserve it, the people of Pilsen have had the good grace to not say, “We told you so.”

Now, thousands of children who attended that elementary school over the years are left to worry whether they have been injured by lead exposure that their government had to be begged to take seriously.

The Bronx New School:  In 1991, New York public school officials made the horrifyingly bad decision to rent an old industrial site and use it for an elementary school.  Despite an extensive, publicly-available record documenting environmental problems at this site, New York not only went ahead and housed the school there anyway, but did no testing at all to see if the school was even safe for the children to attend.  Then, in 2011 – 20 years and hundreds of young graduates later – New York finally got around to the testing.

Guess what?  They found levels of TCE in the air inside and underneath the school that were up to 10,000 times higher than the level that the State of New York says is dangerous.  And even then, school administrators waited 6 months, until the end of the school year, to tell the parents that their kids’ school was dangerous, and that the kids shouldn’t go there anymore. [I've written several blogs on the Bronx situation - which are available here]

Jana’s Case:  A few years ago, we represented a teenage girl named Jana.  Jana had contracted a form of cancer known as Non-Hodgkin’s Lymphoma (“NHL”), caused by exposure throughout Jana’s childhood to chemicals in her family’s water supply that had been dumped years earlier by companies in a nearby industrial park.  Jana’s family didn’t know about the contamination… until Jana got sick.

But the really sad part was that the State’s EPA knew of the chemicals in the water… for many years… and didn’t tell Jana’s family.  So, we helped to pass a new “Right to Know” law, which forced the State to notify families like Jana’s that their air or water was polluted.  They actually needed a law to force them to do this… even though it’s the most important part of their job.

TCE causes cancer:   US EPA just classified TCE as a “known” human carcinogen.  [see our 10/4/11 blog on this subject: “At Long Last EPA Declares TCE To Be A Human Carcinogen]  It used to be a “possible”, then a “suspected”, human carcinogen.  EPA has now removed the doubt.  It says that significant exposure to TCE can in fact cause kidney and liver cancer, and NHL (like it did to Jana).  Other cancers, too.  This deadly chemical is one of the most common pollutants in our environment.  So, in labeling TCE as a “known” cancer-causer, EPA was doing its job, right?  Protecting the people with important information, right?

Do you know how long EPA has been “studying” whether TCE should be classified as a “known” carcinogen?  Since 1987.  Almost a quarter century. This pathetic delay occurred because every time government got close to announcing the truth about TCE – “IT CAUSES CANCER” – the industry of TCE polluters and their lobbyists swung into action, and delayed government’s final decision.   And they are at it again.  The next step that government needs to take is to change the TCE clean-up standards, i.e, lower the levels of “acceptable” concentrations of TCE, now that we know for sure it causes cancer.  This will make TCE clean-up at thousands of contaminated sites all over the country far more expensive for the companies who dumped it there.  So, the TCE polluters’ lobby is hard at work… again.  Any bets on when we’ll see the new TCE clean-up standards?

* * * *

And there’s lots more where this came from.  Story after story about how government just does not protect people against environmental threats. In the 12 years that I’ve been representing the victims of contamination, government’s failure to protect the people is the most predictable, and discouraging, thing.  Time after time, government just does not seem to give a damn.  Or even worse:  it’s on the polluters side, dutifully telling the people that the toxins in their air and water just aren’t that big of a deal, or that government just can’t seem to figure out where they came from.  Or that there’s no need to test, or test more.

But here’s the hopeful part.  Our experience proves that you can shame your government into doing its job to protect you and your family.  It’s called “democracy”.  And it turns out that democracy still works.  Not all the time, of course, and seldom quickly and certainly not perfectly.  But enough to make me believe that democracy still works.

Here are the hopeful signs:

Tonawanda, New York is a working class town outside of Buffalo.  Here’s what we know from a great piece of reporting by The Center for Public Integrity [see this IWatch article dated 11/10/11: “Where regulators failed, citizens took action — testing their own air”]

After years of government refusals to take seriously her complaints about the “toxic blue haze” that was making her sick, Jeani Thompson and her neighbors decided to prove to their government that there was indeed a problem.  So, using buckets and hand-held vacuums, Jeani’s group did the testing that their government had refused to do.  And, they found dangerously high levels of benzene and other chemicals in the air that they were breathing.  They brought their test results to environmental officials.  Then they organized a group of families living next to the plant they believed to be the source of the pollution.  These families would file reports whenever toxic soot would belch out of the plant, and make it hard to breathe, or stink up the neighborhood.

Bottom line:  they shamed their government into action.  Environmental officials have now brought a host of civil and criminal enforcement actions against the plant.  There were even unannounced government inspections of the plant, and government’s own testing of the local air quality – finally.  All of this revealed, not surprisingly, that the plant was a hell-hole of environmental violations; that the air was as bad or even worse than Jeani and her neighbors had claimed; and that plant employees were habitually “under-reporting” – by massive amounts – the volume of chemicals that the plant was emitting every year.

In our contamination cases, we have learned the same thing as Jeani and her neighbors about getting government to do its job.  Because, as in Tonawanda, New York, each of our cases has shined a bright light on a terrible problem, and made it so that government could not look away.

Let’s just look at the cases I mentioned above:

Our First Case.  Yes, it’s true, that government was ready to sweep the entire problem under the rug.  But, that’s not what happened.  When we did our own testing for the people – at a cost of only a couple hundred dollars per home – and found contamination, the EPA (finally) took notice.  We publicized the results of our tests.  EPA couldn’t any longer pretend that there wasn’t a problem.  So, the agency was forced to act.  In response to our test results, EPA representatives actually tested more than one hundred additional homes themselves.  They found that many of them were contaminated, and that the chemicals had traveled miles away from the plant in the groundwater.

And something very good resulted:  many unsuspecting families in the area learned that they had a problem, and could begin to protect themselves.

Our most Recent Case:  Yes, it’s true that the DNR largely ignored a serious problem for 17 years.  There’s really no forgiving that, and someone at DNR should lose his/her job over this.  But, when we and the families started making a lot of noise – very publicly – about how badly the DNR had let the people down, and was coddling the politically-connected polluting company, DNR was embarrassed into taking at least some action.  As things stand today, DNR is requiring the company to do more testing in the next year than it did in the first 17 years.  And the state’s attorney general is now involved… so that, if the company drags its feet on this new round of testing, the state’s chief law enforcement officer goes after them.  It’s still not nearly enough, of course.  There are still far too many area families who do not know that they have a serious problem.  But it’s progress.

Pilsen and The Bronx New School:  Yes, it’s true that the necessary testing came years too late.  But, in both communities, the testing has now been done, and local families can begin to identify and test the children who may have been hurt by the contamination.  Also, the Illinois Attorney General recently has filed what seems to be a pretty tough case against one of the lead polluters, and already has gotten the company to agree to operational changes that will significantly reduce lead contamination in the neighborhood.  Finally, the fact that government resisted testing for so long – and found dangerous levels of contamination once it did test – will forever serve as a weapon for the people in future battles over contamination in those communities.  They will always be able to say to school to officials and environmental agencies:  “Remember what happened the last time you told us everything was OK?  Remember what happened the last time you told us that no testing was necessary?”

The point here is: whether it’s Tonawanda or Pilsen or The Bronx or your neighborhood, families dealing with contamination, or suspecting contamination, must be both realistic and demanding.  You must realize that, left on its own, your government cannot be expected to protect you from environmental contamination.  But  you must also know that it can be expected to not want to be embarrassed.

So, embarrass them.  Take the tests yourself, like Jeani Thompson and her neighbors did.  Like we did in our first case.  Go to the TV and newspaper reporters with the results, and your concerns about your health and property.  If you catch government failing to do its job to protect you, or siding with the polluter, make them pay the price.  Demand the firing or resignation of the officials who would not take you seriously.  Push for the passage of a new law (like Jana’s law) or ordinance to forbid government from refusing ever again to do the necessary testing. Or to tell you the results.  Publicly remind government officials that they were wrong about something very important to you and your family.  And about how difficult it will be for them to ever again earn your trust.

You can even file a lawsuit, not only to prove how dangerous and wide-spread the contamination is, but also to expose how slow and ineffective, and polluter-friendly, government’s response has been.

Shame them into doing their jobs.   It’s the democratic thing to do.

IS ENVIRONMENTAL PROTECTION FOR SALE… OR DOES IT JUST LOOK THAT WAY?

By Shawn M. Collins on Posted in Citizen Suit, Contamination, Government, Pollution

You may have heard that President Obama is trying to get himself re-elected.  What you may not have heard is what US EPA Chief, Lisa Jackson, is doing to help him.

Last month, the President sent out an invitation to attend his money-raising events in San Francisco.  The invitation said that, by giving $5,000, contributors would receive a “Season Pass” to so called “VIP events,” and that:

  • “The Season Pass is a monthly speaker series of top level people from the administration and campaign who will come to the Bay Area, at least once a month, to have more intimate, in-depth gatherings with Pass holders”
  • “…The idea is to give a smaller group of people personal introduction to a lot of amazing people as well as VIP status at the big events (i.e., smaller receptions, preferred seating) and have the chance for more substantive discussions and interaction.”

And then the invitation added this:

  • One of these “VIP events” for “Season Pass” holders would be held on November 3  “for those who care about environmental and cleantech policy,” and would feature “EPA Administrator Lisa Jackson.”  For another $5,000 – yes, now a total of $10,000 – “Season Pass” holders would get access to a “small private reception and discussion” with Jackson. [see this Palo Alto Online article dated 10/24/11].

Likewise, last year, the head of a lobbying firm – which got paid hundreds of thousands of dollars to persuade EPA to relax its rules against the use of fire-retardant chemicals – offered to hold a fundraiser, promising contributors the chance to talk to Jackson “about issues of concern to you.” (Jackson later was embarrassed into canceling the event as it was to be held in the middle of the BP Amoco /Gulf of Mexico oil spill crisis.) [see this Time Swampland article dated 7/20/11]

Who’s paying $10,000 for an “intimate, in-depth gathering” with EPA Chief Jackson?… a “more substantive discussion and interaction” with Jackson?… “a small private reception and discussion” with Jackson?

Here’s a hint:

It’s not the families I represent.  It’s not the hundreds of thousands of people in this country whose water is too polluted to drink, or air too polluted to breathe.  They can’t afford $10,000 “intimate discussions” with a government official.  They’re too busy trying to find work, taking care of their kids, paying bills and learning to cope with the pollution some company dumped on them.

No, these “intimate discussions” are really for polluters, and the people who work for polluters.  How do I know?  For starters, the polluters are the ones who have $10,000 to spend.  And they’re also the ones who think the $10,000 investment is worth it.  Because they understand that, with the stroke of a pen or the turn of her head away from an environmental problem, Lisa Jackson can save them millions of dollars through relaxed or demolished environmental protections.

My worry is this:  if Jackson spends her time having “in-depth and intimate” discussions with companies who want to weaken environmental protections, pretty soon she may wind up thinking that the only ones who matter are those who want to weaken environmental protections.

And that’s how environmental protections get weakened.

This basic exchange of money for private access to government decision makers is as wrong as it is raw.  It’s Chicago-style, “pay-to-play” politics at its sleaziest.

Now, let’s say that I’m mistaken about who’s paying for these pricey, private meetings with Jackson.  Let’s say that the $10,000 “discussions” are not being held with polluters at all, but instead with the Sierra Club, or plaintiffs’ lawyers like me, who want tougher environmental regulation.  Would that be okay?

Of course not.  Because, more than anything else, what makes this practice so disgraceful is that it says that the things that government provides are for those who can pay a lot of money for them.  That decisions about environmental regulation are made not based on what should happen, and not out in the open, but instead based upon who can afford $10,000 for an off-the-record private meeting with the head of the EPA.

Bottom line:  if the meeting is worth having at all, it should be out in the open, or in a government office, and no one should have to pay to get into it.

Environmental protection should not be for sale, regardless of who is buying.  Lisa Jackson is supposed to be working for clean air and water, not auctioning off private access to her authority for those who can afford to pay thousands for it.

“But,” you say, “everyone does this.  George Bush did it.”  Maybe he did.  I don’t care.  It’s wrong.  Likewise, some have said that what Jackson is doing is not “against the law.”  I still don’t care.  It’s still wrong.

And if the law allows it, that may be the sorriest news in all of this.  Because then we’d be talking about who this country really belongs to, after all.

Suit Filed Against Madison, Wisconsin Polluter

By Michael Hayes on Posted in Citizen Suit, Contamination, Groundwater, Pollution, RCRA, Vapor Intrusion

Back in May of this year, Norm Berger posted an article in this Blog about a serious vapor intrusion problem in Madison, Wisconsin caused by the manufacturing company Madison-Kipp Corp. (“MKC”).  As Norm reported, families living near the MKC plant had recently learned that the toxic chemicals PCE and TCE were present in vapor form beneath and inside their homes.  MKC had used these cancer-causing chemicals for several decades, and had spilled and released large volumes of them on MKC’s property.  Notwithstanding MKC’s claim that it had sufficiently cleaned up these releases years ago, PCE and TCE have migrated and continue to migrate in groundwater from the MKC plant into adjacent residential neighborhoods. MKC has for years been assuring its neighbors that all is well and that no one is in any danger.  However, these families recently learned, to their horror, that PCE and TCE vapors are in fact present immediately beneath and inside their homes. 

Last week, The Pollution Lawyers filed a federal court lawsuit against MKC on behalf of seven families who live adjacent to the MKC plant.  In their RCRA citizen’s suit Complaint, these families assert that MKC has contaminated their properties and has failed to adequately investigate and remediate contamination issues at the MKC site and in the surrounding residential areas.  The suit seeks to require MKC to comprehensively clean up not just its own properly but all surrounding properties that have been impacted by MKC’s contamination.  As MKC has for years resisted performing studies to determine how far its chemical releases have moved off-site, the suit also seeks to compel MKC to perform an investigation to determine the geographical scope of the contamination, so residents of Madison know whether or not they are in harm’s way.  Compensatory damages, including lost property values, and punitive damages are also sought from MKC. 

Hopefully, this suit and stepped up enforcement efforts by the Wisconsin DNR and DOJ will result in MKC finally taking responsibility for and resolving the serious harms MKC has inflicted on its neighbors.